Mohalenyane Phakela
FORMER army commander Lieutenant General (Lt-Gen) Tlali Kamoli and other high-profile suspects in various murder and attempted murder cases have launched a fresh Constitutional Court application to permanently stop their trials.
They argue that they have been in custody for far too long and the delays in trying them are an infringement of their constitutional rights to speedy and fair trials. Their bizarre latest application is despite that they are the ones entirely responsible for the delays of their trials. Lt-Gen Kamoli and company have resorted to every trick to try and forestall their trials. Their tactics have included applications for recusal of judges and spurious arguments about how these were appointed were appointed.
All in all, 29 applicants have filed the latest application to try and halt their trials completely. Of these, 25 are soldiers and the rest are police officers.
Lt-Gen Kamoli, Major Pitso Ramoepana and Senior Superintendent Thabo Tšukulu are the best known of the applicants.
Most of them have been in remand prison since their arrests in 2017 after elections that year which ushered in Thomas Thabane’s four party coalition, replacing the Pakalitha Mosisili led group that had overseen rampant rights abuses.
The 29 applicants argue that due to their lengthy detention, their rights to a fair trial have been compromised and therefore their trials should be stayed.
They argue that their “inhuman” detention at the Maseru prison should be declared unconstitutional and they should thus be released on bail pending the finalisation of their latest application.
They also claim that the foreign judges Charles Hungwe (Zimbabwe) and Onkemetse Tshosa (Botswana) are “incompetent” to preside over their trials.
They therefore want the Judicial Service Commission (JSC) to advise His Majesty King Letsie III to set up a tribunal to inquire into the competency of the two judges, who were specifically recruited by the JSC to preside over all high-profile cases involving politicians and members of the security agencies accused of rights abuses during the Mosisili era.
The Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane, the Registrar of the High Court and Court of Appeal Adv ‘Mathato Sekoai, the Commissioner of the Lesotho Correctional Service, the JSC, outgoing Attorney General Adv Haae Phoofolo, Justice Hungwe and Justice Tshosa are the first to seventh respondents respectively in the application.
The applicants want the Constitutional Court to order that “the applicants’ right to a fair trial within a reasonable time has been violated”.
They want an order granting them bail in terms of section 6(5) of the constitution.
Section 6(5) of the constitution states that, “if any person is arrested or detained upon suspicion of committing a criminal offence… and his criminal offence is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including such conditions as are reasonable necessary to ensure that he appears at a later date for trial for proceedings preliminary to trial”.
The applicants also want the court to order the JSC to advise King Letsie III “to appoint a tribunal to enquire into the fitness of Justices Hungwe and Tshosa to hold offices as judges of the High Court of Lesotho.”
Lt-Gen Kamoli and others have previously unsuccessfully sought the recusal of Justices Hungwe and Tshosa on the grounds that they could be biased against them.
They allege that they are subjected to inhuman conditions in prison where they are denied nutritious food.
They therefore want the court to “declare that the act of denying the applicants access to nutritious food violates their rights to health. It is tantamount to torture and inhuman treatment (and) therefore unconstitutional”.
In his affidavit, Lt-Gen Kamoli alleges that he is suffering from a chronic disease and his detention under “inhuman” conditions is further compromising his health.
“I have been diagnosed with a chronic disease and the living conditions at the Maseru Central Correctional Institution impact negatively on my health. The conditions are not the acceptable standards for good health. I have also lost all hope that I will receive a fair trial,” Lt-Gen Kamoli states. He does not specify the chronic disease.
The latest application is in keeping with unrelenting attempts by Lt-Gen Kamoli and others to stop the state from trying them. The delays of their trials have been wholly at their behest. It’s intriguing that they now want to rely on circumstances they have caused to escape justice.
They have tried several methods to stop the trials including filing applications to stop Justice Hungwe and other foreign judges from presiding over their cases. In 2018 they unsuccessfully sought the removal of the foreign judges on the grounds that they had been recruited by the government and not the JSC in “contravention” of laws requiring all judges to be recruited by the JSC.
When this failed, they launched several ultimately unsuccessful applications for the recusal of the judges, alleging they would be biased against them.
Political parties like the Democratic Congress (DC), then in opposition, and the Lesotho Congress for Democracy (LCD) had also joined the bandwagon, demanding the halting of all high-profile trials until after the full implementation of the multi-sector reforms.
They had made the halting of all trials of high-profile cases a precondition for their participation in the multi-sector sector reforms process.
They eventually dropped the demand after the intervention of Southern African Development Community (SADC) leaders in 2018. SADC is mediating between the government and opposition to ensure the successful implementation of the constitutional, security sector, judicial, media and governance reforms seen as crucial in achieving lasting peace and stability in Lesotho.
The DC is now in government as an anchor coalition partner of the ABC. It has not raised its earlier demands for Lt-Gen Kamoli’s release since joining government in May 2020.
There is a pending application for the recusal of Justice Hungwe in the Court of Appeal which will be heard on 12 October 2020.
Justice Tshosa last week rejected an application by Captain Litekanyo Nyakane and four other soldiers from presiding over their trial for the 2012 murder of three civilians in Mafeteng.
Captain Nyakane and his co-accused had argued that the Botswana judge must recuse himself from the case because he was unlikely to give him a fair trial as he had allegedly threatened him in a preliminary hearing on 9 December 2019.
They said Justice Tshosa had said that the “court is not a playground” and they felt threatened by that statement.
However, in delivering his verdict last week, Justice Tshosa said there was no basis for the recusal as there were no court records proving that he had ever uttered such words.
